In West Virginia, a Governor Seeks Legal Clarity

In his ongoing efforts to make West Virginia a more hospitable state to business, Gov. Joe Manchin has taken the unusual step of filing an amicus brief with the state Supreme Court of Appeals, asking the court to clarify the ability of DuPont to challenge a jury’s award of punitive damages against it. DuPont last week filed an appeal (news release) to the state’s top court of last October’s awarding of $196.2 million in Harrison County Circuit Court, the result of a class-action lawsuit by residents who charged a nearby zinc smelter endangered the public through heavy metals. (Previous news coverage.)

AP now reports that Manchin’s brief cites a 2003 U.S. Supreme Court decision to argue that the 14th Amendment guarantees appeals of punitive damages, asking whether consideration of a written appeal alone is adquate. The plaintiff’s lawyers express outrage; Florida lawyer Michael Papantonio declared, “This just further delineates how badly the deck is stacked in West Virginia against people trying to recover when they’re taking on DuPont. It’s stacked against people who have been wronged by corporate America.”

Really? Stacked for business against the people? According to Directorship Magazine’s 2008 Boardroom Guide to State Legal Climate — a project of the American Justice Partnership — West Virginia ranked 49th in the county in anti-business legal climates.

In other West Virginia legal news, Walter Olson at Point of Law reports: “In West Virginia, a state where government hiring of private lawyers to pursue public lawsuits has been particularly controversial, four law firms including Hagens Berman are set to split $3.9 million for prosecuting an antitrust suit against Visa and MasterCard that resulted in a settlement, per the Charleston Daily Mail. And Attorney General Darrell McGraw has appointed four lawyers to pursue a new suit against a variable annuity life insurance provider. Steve Roberts, who heads the state chamber of commerce, said it’s particularly frustrating that the AG’s office makes no disclosure about how the lawyers — many of whom contribute to his campaign — are selected for the task. ”